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1983 Supreme(AP) 93
Andhra Pradesh High Court
Judges : P.A.CHOUDHARY
Dumpa Venugopala Reddy - Appellant
Versus
Chilla Laxmikantham - Respondent
Decided On : 03-09-83
The proviso to Order 21, Rule 90, which required the applicants to furnish security, was repealed by section 97 of the Central Government Act (Act CIV of 1976) and was also inconsistent with the amended Order 21, Rule 90, which conferred an unqualified and absolute right on the applicant to make an application to set aside a Court-sale.
Headnote:
ORDER 21 RULE 90 - SETTING ASIDE COURT SALE - FURNISHING SECURITY - MADRAS AMENDMENT REPEALED - COURT CANNOT INSIST ON FURNISHING SECURITY - SECTION 97 OF ACT CIV OF 1976.
Fact of the Case:
Judgment debtors filed an application under Order 21, Rule 90 of the Code of Civil Procedure to set aside a court sale of their mortgaged properties. The application was rejected by the lower court on the ground that the applicants failed to furnish security along with the application as required by a proviso to Order 21, Rule 90.
Finding of the Court:
The court held that the proviso to Order 21, Rule 90, which required the applicants to furnish security, was repealed by section 97 of the Central Government Act (Act CIV of 1976). The court further held that even if the proviso was still in force, it could not be applied in the present case as it was inconsistent with the amended Order 21, Rule 90, which conferred an unqualified and absolute right on the applicant to make an application to set aside a Court-sale.
Issues: 1. Whether the proviso to Order 21, Rule 90, which required the applicants to furnish security, was repealed by section 97 of the Central Government Act (Act CIV of 1976)? 2. Whether the proviso to Order 21, Rule 90, was consistent with the amended Order 21, Rule 90, which conferred an unqualified and absolute right on the applicant to make an application to set aside a Court-sale?
Ratio Decidendi: 1. Section 97 of the Central Government Act (Act CIV of 1976) repealed any amendment or provision inserted in the Code of Civil Procedure by a State Legislature or a High Court before the commencement of Act CIV of 1976, unless such amendment or provision was consistent with the provisions of the Code of Civil Procedure as amended by Act CIV of 1976. 2. The proviso to Order 21, Rule 90, which required the applicants to furnish security, was inconsistent with the amended Order 21, Rule 90, which conferred an unqualified and absolute right on the applicant to make an application to set aside a Court-sale. The proviso altered, impaired, and detracted from the operation of the amended Order 21, Rule 90.
Final Decision: The court allowed the revision petition and set aside the order of the lower court. The lower court was directed to take up the application filed by the judgment-debtors and dispose of it according to the terms of Order 21, Rule 90, Civil Procedure Code, as amended by the Parliamentary Act CIV of 1976 and without reference to the Madras proviso.
( 2 ) THE Judgment of the Court below shows that the learned Subordinate Judge, Visakhapatnam placed reliance on the language of a proviso to Order 21, rule 90, Civil procedure Code, for holding that an application under Order 21, rule 90, Civil Procedure code, cannot be entertained unless accompanied by a bond of security or deposit of money into Court. The lower Court proceeding on the assumption that an application filed under Order 21, rule 90, Civil procedure Code, cannot be maintained unless it is accompanied by a bond of security, merely considered the question whether that proviso to Order 21, rule 90 was repealed by section 97 of the Central Government Act (Act CIV of 1976) by which extensive amendments had been made by the Parliament to the Civil Procedure Code. The lower Court having answered that question against the judgment-debtors and having held that section 97 of the afore-mentioned union Act, did not have the effect of repealing the particular proviso to Order 21 rule 90, Civil Procedure Code, upheld that office objection to the maintainability of the application filed by the judgment-debtors under Order 21, rule 90, Civil Procedure code, without being accompanied by a bond of security or deposit of money into Court.
( 3 ) SRI T. Veerabhadrayya, learned Counsel for the petitioners assailed the order under revision on two grounds. The first ground is that the proviso in question which was added to the Civil Procedure Code, by way of a Madras amendment in the year 1936, stood repealed by reason of section 97 of the afore-mentioned central Act CIV of 1976 and that therefore the lower Court was wrong on relying upon a legal provision which was no longer on the Statute Book. The second objection which has been raised by Sri Veerabhadrayya to the validity of the order under revision is that even on the assumption that the Madras amendment of 1936 to Order 21, rule 90, civil Procedure Code continues to be on the statute Book, the order of the learned subordinate Judge is ultra vires of his powers under that very Order 21, rule 90, Civil Procedure Code. The argument of the learned counsel is that there is nothing the language of the proviso to Order 21, rule 90, Civil Procedure Code, which requires an applicant to furnish security or to make a deposit along with the application itself. T
